L. A. Cnty. Dep't of Children & Family Servs. v. I.S. (In re F.S.)

• Decision Date: 07 January 2016
• Docket Number: B260760
• Citation: 243 Cal.App.4th 799,196 Cal.Rptr.3d 830
• Court: California Court of Appeals Court of Appeals
• Parties: IN RE F.S., a Person Coming Under the Juvenile Court Law. Los Angeles County Department of Children and Family Services, Plaintiff and Respondent, v. I.S., Defendant and Appellant.

243 Cal.App.4th 799

196 Cal.Rptr.3d 830

IN RE F.S., a Person Coming Under the Juvenile Court Law.Los Angeles County Department of Children and Family Services, Plaintiff and Respondent,

v.I.S., Defendant and Appellant.

B260760

Court of Appeal, Second District, Division 5, California.

Filed January 7, 2016

Jesse F. Rodriguez, under appointment by the Court of Appeal, for Defendant and Appellant.

Mary C. Wickham, Interim County Counsel, Dawyn R. Harrison, Assistant County Counsel, Jessica Paulson–Duffy, Deputy County Counsel, for Plaintiff and Respondent.

BAKER, J.

Mother I.I. and Father I.S. are parents of a daughter, F.S., who was born in 2010. The parents have a history of domestic violence, and when the Department of Children and Family Services (DCFS) learned that Mother and Father had been involved in a physical altercation in March 2013, the juvenile court assumed dependency jurisdiction over F.S. and ordered her placed in Mother's home. While dependency proceedings were ongoing, Mother and Father were involved in another physical altercation, and police arrested Mother as the aggressor. After her arrest, Mother took F.S. to Texas without notifying the social worker. The juvenile court issued an arrest warrant for Mother and a protective custody warrant for F.S., and DCFS filed a Welfare and Institutions Code section 387¹ petition to remove F.S. from Mother's physical custody. While Mother and F.S. were absent from the jurisdiction, the juvenile court held a hearing on the petition and ordered F.S. removed.² Father appeals from the juvenile court's removal order and asks us to decide (1) whether the juvenile court erred in proceeding with the section 387 hearing in Mother's absence, and (2) whether the court's decision to sustain the section 387 petition and remove F.S. from Mother's custody is supported by sufficient evidence.

BACKGROUND

A. Events Prior to the Challenged Section 387 Hearing and Removal Order

1. The family comes to the attention of DCFS

On March 18, 2013, Mother was getting F.S. ready for school and Father struck Mother in the face, causing a nosebleed. Mother contacted the police and sought medical attention, and police arrested Father. Father asserted the incident was an accident. The District Attorney's office declined to file charges against Father.

DCFS was notified of the incident and assigned a social worker to investigate. After reviewing the police report, DCFS learned that there had been prior episodes of domestic violence between Mother and Father. The DCFS social worker asked Mother about these prior incidents. Mother disclosed that in 2011, she was arrested because she bit Father; F.S. was present during the altercation. Mother pled guilty and the court ordered her to complete 52 weeks of domestic violence classes. Mother also told the social worker about a second incident in 2012 when she was asleep with F.S. in the bed and awoke to find Father standing over her with a knife. She claimed Father cut her shirt and threatened to kill her. Mother got up and called 911.

In addition to interviewing Mother, the social worker visited Mother's apartment. The social worker saw that F.S. had a crib and that the parents slept in separate bedrooms. There was a hole in the door to Father's bedroom. Mother told the social worker the hole "was from another time when we were fighting. I don't remember what happened." Mother told the social worker she wanted to get away from the situation and move to Texas to be with her family.

The social worker also spoke to the teacher at F.S.'s preschool. The teacher said that F.S. came to school well dressed and well groomed, and the teacher told the social worker that she had not seen any marks or bruises on F.S.

2. DCFS files, and the juvenile court sustains, a section 300 petition

DCFS filed a section 300 petition alleging that F.S. came within the jurisdiction of the juvenile court under section 300, subdivisions (a) and (b) because of the history of domestic violence between Mother and Father, including the episode on March 18, 2013. At a detention hearing on the petition, the juvenile court made detention findings against Father and ordered F.S. detained and placed with Mother. The court ordered family maintenance services, and Father was given monitored visitation.

At the adjudication hearing on the section 300 petition,³ Mother and Father did not contest the petition's allegations. The juvenile court dismissed the count under subdivision (a) and sustained the count under subdivision (b). The court ordered monitored visitation for Father, as well as domestic violence and parenting classes. The court ordered an assessment under the Interstate Compact on the Placement of Children (Family Code section 7900 et seq. ) in connection with Mother's stated desire to move to Texas. The court, however, ordered that no one may take F.S. out of the state of California without notifying the social worker. The juvenile court also ordered Mother to make herself and the child available to DCFS for child welfare contacts, and to make F.S. available for unannounced home calls. Mother signed the case plan order listing these obligations. In the weeks following the adjudication hearing, Mother told the social worker that the criminal court would not allow her to move to Texas.

3. Additional incidents between Mother and Father, and Mother takes F.S. to Texas

The juvenile court scheduled a six-month review hearing to take place in November 2013. Before the hearing, DCFS learned that Father made a "keep the peace" call to police on August 4, 2013, because he was at Mother's apartment to pick up his belongings and Mother was being uncooperative. DCFS also learned that four days later, on August 8, Mother called the police claiming Father and his friends were knocking on her front door and refused to leave. When the police arrived, the door appeared to have been kicked, but Mother told the police she did not need their help. DCFS discovered both incidents in August by obtaining police records; neither Mother nor Father reported the incidents when communicating with DCFS.

The juvenile court continued the six-month review hearing from November 2013 to January 2014, and DCFS filed an updated report in advance of the continued hearing. According to the report, Mother was meeting all of F.S.'s basic, emotional, medical, and educational needs. The report, however, stated that the "parents have made little progress with court ordered programs since the last court hearing on [November 22, 2013]." Father had not been attending visitation, and he told the social worker that, culturally, monitored visitation was viewed negatively and was a sign of weakness. Mother was in partial compliance with the order to attend domestic violence classes; although she had completed the classes, she had not finished paying for them.

Mother had attended two parenting classes, and the instructor was concerned with Mother's level of commitment. Father had not enrolled in any court-ordered classes, nor had he enrolled in court-ordered counseling.

At the six-month review hearing, the court ordered DCFS to continue to provide reunification services to the parents, and the court set the next review hearing for July 31, 2014.

On April 19, 2014, police responded to Father's apartment. Mother—who had brought F.S. to the apartment with her—engaged in a violent confrontation with Father. Father's face was bleeding and he had blood on his clothing; he reported that Mother had thrown a phone at him, striking him on his forehead, during the course of an argument. Mother was in a rear bedroom of the apartment and had scratches on her inner right arm. Mother gave police a false name, "Grace." Police determined Mother was the aggressor in the altercation and arrested her.

DCFS contacted Mother by phone after learning about the incident. Mother claimed—falsely—that she was not the "Grace" that had been arrested by the police. Mother also stated she no longer resided in California, claiming her attorney had given her permission to leave the state. During the phone call, Mother refused to tell DCFS where she was residing, and when the social worker told her she did not get permission to leave the state with F.S., Mother insisted she did and hung up the phone. In a subsequent phone call, Mother told DCFS she was living in Dallas, Texas, but she refused to provide her address.

B. The Court Holds a Hearing on a Supplemental Petition Filed by DCFS and Removes F.S. from Mother's Custody

DCFS filed a section 387 supplemental petition based on the April 19, 2014, domestic violence incident between Mother and Father. The petition alleged Mother failed to protect F.S. by continuing to have contact with Father, engaging in domestic violence with Father, and allowing Father unlimited access to F.S.⁴ Based on information that Mother had taken F.S. to Texas without permission, the court issued a protective custody warrant for F.S. and an arrest warrant for Mother. The court ordered F.S. detained and set the matter for hearing on July 31, 2014.

DCFS interviewed Mother by telephone in advance of the next court hearing. Mother continued to falsely deny she had been involved in the April 19, 2014, domestic violence incident with Father. She claimed the "Grace" referred to in the police reports was her step-sister who was visiting California from Africa. Mother also claimed she was already in Texas on April 19, 2014—the date of the incident. DCFS also spoke to Father, and he likewise falsely claimed Mother was not involved in the April 19, 2014, altercation. Father told DCFS that the "Grace" who was involved was Mother's twin sister (not her step-sister, as Mother had told DCFS).

Counsel for all parties appeared in court on July 31, 2014, the scheduled date for the hearing on the section 387 petition. Reports submitted by DCFS advised the juvenile court that Mother remained at large with F.S. and was reportedly living at an address in Richardson, Texas. The...